키코(KIKO) 통화옵션계약에 대한 최근 대법원 판결의 고찰 - 대법원 2013. 9. 26. 선고 4건의 판결 -

Abstract

KIKO(Knock-in Knock-out) currency option which is a kind of NDF (nondeliverable fund), was introduced as a hedge instrument against foreignexchange risk. KIKO may be more attractive than the futures and thecurrency option in that it secures higher strike price and that it requires nopremium than the future prices. KIKO may be more beneficial than otherforeign exchange hedge instruments when the foreign exchange ratesfluctuate within the barriers designated in KIKO currency option contract. Unexpectedly, KIKO, however, incurred huge losses to numerous exportingcompanies, especially to small and medium sized enterprises (SMEs). Thelosses were accelerated by the global financial crisis and abrupt depreciationof Korean Won in 2008. 776 companies were aggrieved by KIKO and theamount of losses incurred by KIKO was estimated to exceed three trillionWon. Many exporting companies, mostly SMEs which suffered losses by KIKOfiled law suits against the banks which sold KIKO. Most of the lower courtsmade decisions in favor of the banks. On September 26, 2013, the SupremeCourt made its first four decisions upholding the lower court’s decisions. The main issues is 1) whether KIKO was fair contract 2) whether KIKOcontract was “standard terms and conditions” 3) whether KIKO was a zero-cost instrument 4) whether KIKO was suitable for foreign exchangehedge instrument 5) whether the banks explained sufficiently KIKO. The Supreme Court ruled that KIKO was fair contract, and that KIKOcontract was not “standard terms and conditions”. The Supreme Court alsoruled that KIKO was a zero-cost instrument, and that KIKO was suitable forforeign exchange hedge instrument. The Supreme Court ruled that the banksshould have sufficiently explained KIKO.